Baptist v. Ford Motor Company

Filing 164

MOTION by Defendant Ford Motor Company for judgment as a matter of law pursuant to FRCP 50(a) (Divita, Nicholas)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES BAPTIST,
Plaintiff,
v.
FORD MOTOR COMPANY,
Defendant.

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Case No. 1:13-cv-08974
Hon. Virginia M. Kendall

DEFENDANT FORD MOTOR COMPANY’S
MOTION (WITH SUPPORTING MEMORANDUM)
FOR JUDGMENT AS A MATTER OF LAW
Defendant Ford Motor Company moves for judgment as a matter of law under Federal
Rule of Civil Procedure 50(a). Plaintiff has been fully heard at trial and the jury does not have a
legally sufficient evidentiary basis to find for Plaintiff. Specifically, (1) Plaintiff failed to present
legally sufficient evidence supporting his request for punitive damages; (2) Plaintiff failed to
present legally sufficient evidence that he is entitled to lost-wages damages; (3) Plaintiff failed to
present legally sufficient evidence of emotional-distress damages; and (4) Plaintiff failed to
present legally sufficient evidence that Ford terminated him because he filed a workers’
compensation claim.
RELEVANT FACTS
Plaintiff James Baptist has been fully heard at trial, and the evidence—construed in his
favor—shows the following. 1 Baptist was hired as an entry-level forklift operator at Ford’s
Chicago Assembly Plant, and began work on February 27, 2012. The terms of his employment
1

The trial transcript is not yet available. Ford incorporates the transcript and exhibits admitted at
trial.

were governed by a Collective Bargaining Agreement between Ford and the United Auto
Workers. One of those terms provided that an employee with fewer than six months could be
terminated if he or she was absent without leave for three straight days.
On April 10, 2012, while Baptist was driving his forklift at the plant, he clipped a pillar
with a crate he was carrying with the forklift. Baptist testified at trial that there was no damage
to the forklift, and maybe a scratch or two on the pillar. He was steering the forklift with his left
hand open and flat, with the steering wheel’s knob under his palm, not wrapped around the
steering wheel. But he says that his hand got caught up in the wheel and was injured. Baptist
testified that his hand did feel sore, but he was more shaken up than anything. Baptist did not
immediately report the injury, and instead kept working, driving the forklift for another 45
minutes until the end of his shift.
Baptist claims that he reported the injury to his supervisor by text message and went to
the medical department at the plant, but there was no doctor or medical personnel present.
He did not submit a formal accident report until April 18, which triggered a review by Ford’s
workers’ compensation administrator, Jennifer Nawracaj.
On April 24, Baptist went to his personal orthopedic surgeon, Dr. William Heller, who
noted evidence of a ligament tear in Baptist’s left wrist. Dr. Heller issued Baptist a wrist brace
and concluded that Baptist could “continue to perform his regular work duties within the brace.”
For the next two months, Baptist operated the forklift without incident while wearing his wrist
brace.
On June 24, Baptist left work early, supposedly to seek additional medical attention for
his wrist. He did not actually see Dr. Heller until two days later, on June 26. Dr. Heller
recommended surgery but cleared Baptist to return to work. In a form letter faxed to Ford on

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June 29, Dr. Heller checked boxes indicating that Baptist could “return to work with the
following restrictions as of 7-2-12”: “no lifting over 5 lbs with left hand or gripping.” Dr. Heller
did not check boxes for the restrictions “one handed work, R L,” “sedentary work only,” or
“temporarily totally disabled.”
Baptist, however, did not return to work.

On July 23, nearly a month later, Ford

suspended Baptist for a month for excessive absenteeism. When his suspension ended on
August 24, Baptist reported to the plant. The plant physician, Dr. Patricia Lewis, cleared Baptist
to resume his forklift position. She concluded on July 5 that Dr. Heller’s five-pound lifting-orgripping restriction would not prevent Baptist from operating a forklift. Ford informed Baptist
that it did not have another work assignment for him and instructed him to return to his forklift
position.
Baptist refused and walked out of the plant. He never returned to work at his forklift
position. At the time Baptist walked off, he had not worked a day at Ford since June 24, two
months earlier. After Baptist was absent without leave for three more days, he was terminated.
A labor representative at Ford, Quandra Speights, processed Baptist’s discharge effective August
31, 2012, as a “Three-Day Quit” pursuant to the Collective Bargaining Agreement. Ms. Speights
relied only on Baptist’s attendance records in making the decision to terminate his employment.
The UAW did not file a grievance concerning Baptist’s termination.
Between his last day of work on June 24 and his termination on August 31, Baptist never
provided Ford with a medical opinion that he was physically unable to operate a forklift or had
any work restrictions other than a five-pound lifting-and-gripping limitation. Baptist knew not
later than July 9 of Dr. Lewis’s conclusion that Dr. Heller’s work restrictions of June 29 did not

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interfere with Baptist’s ability to operate the forklift. Baptist did not see Dr. Heller after June 26.
Dr. Heller never issued any different or additional work restrictions after June 29.
RULE 50(A) STANDARDS
Federal Rule of Civil Procedure 50(a)(1) provides:
(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue during a jury trial and
the court finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against the party on a claim or
defense that, under the controlling law, can be maintained or defeated only with a
favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be made at any time
before the case is submitted to the jury. The motion must specify the judgment
sought and the law and facts that entitle the movant to the judgment.
The standard of review on a motion for a directed verdict (now called a motion for
judgment as a matter of law under Rule 50) is “whether the evidence presented, combined with
all the reasonable inferences permissibly drawn therefrom is sufficient to support the verdict
when viewed in a light most favorable to the party against whom the motion is directed.” Tice v.
Lampert Yards, Inc., 761 F.2d 1210, 1213 (7th Cir. 1985). “The court cannot resolve any
conflicts in testimony or otherwise weigh and evaluate the evidence; these functions are reserved
for the fact finder.” Webb v. City of Chester, 813 F.2d 824, 828 (7th Cir. 1987). The Court is
required to determine “the evidence, taken as a whole, provides a sufficient probative basis upon
which a jury could reasonably reach a verdict, without ‘speculation over legally unfounded
claims.’” Panter v. Marshall Field & Co., 646 F.2d 271, 281 (7th Cir 1981) (quoting Brady v.
Southern Railway, 320 U.S. 476, 480 (1943)). “A legally sufficient amount of evidence need not

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be overwhelming, but it must be more than a ‘mere scintilla.’” Filipovich v. K & R Exp. Sys.,
Inc., 391 F.3d 859, 863 (7th Cir. 2004).
In short, the Court’s “job is to assure that the jury ha[s] a legally sufficient evidentiary
basis” to reach a verdict. Filipovich, 391 F.3d at 863.
ARGUMENT
I.

PLAINTIFF FAILED TO PRESENT LEGALLY SUFFICIENT EVIDENCE AS
TO PUNITIVE DAMAGES
As this Court noted in its March 27, 2017 order regarding Ford’s motions in limine,

“[w]hile the measure of punitive damages is a question for the jury, the preliminary question of
whether the facts of a particular case justify the imposition of punitive damages is one properly
of law.” (ECF 155 at p. 3; see Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 186, 384 N.E.2d 353, 359
(1978): “while the measurement of punitive damages is a jury question, the preliminary question
of whether the facts of a particular case justify the imposition of punitive damages is properly
one of law.”) The Court ordered that, to proceed with a claim for punitive damages, “Plaintiff
must establish Defendant retaliated ‘with fraud, actual malice, deliberate violence or oppression,
or acted willfully with such gross negligence as to indicate a wanton disregard of the rights of
others.’ (Id.; quoting Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 186, 384 N.E.2d 353, 359 (1978)).
Importantly, proof necessary to support the imposition of liability for compensatory
damages is not sufficient to support the imposition of liability for punitive damages. Jackson v.
Bunge Corp., 40 F.3d 239, 247 (7th Cir. 1994) (“We do not accept Jackson's theory that the issue
of punitive damages must be sent to the jury any time that the plaintiff satisfies the formal
elements of a retaliatory discharge claim”). “But a court can only award punitive damages if the
defendant's misconduct is “above and beyond the conduct needed for the basis of the action.”
Kritzen v. Flender Corp., 226 Ill. App. 3d 541, 554 (1992). The conduct must involve “some

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element of outrage similar to that usually found in a crime.” Loitz v. Remington Arms Co., 138
Ill. 2d 404, 415 (1990).” Siegel v. Hershinow, 2016 WL 5171787, at *3 (N.D.Ill., 2016).
The evidence at trial shows nothing of the sort. Far from allowing submission of a claim
for retaliatory discharge, there is no substantial evidence in this record of fraud, actual malice,
deliberate violence or oppression, or willful and wanton disregard. At most, the evidence shows
a good faith tension between Baptist and Ford in the application of Dr. Heller’s five-pound
lifting-and-gripping limitation insofar as whether Baptist could not drive a forklift, even though
the restriction did not actually say that and even though Ford’s experienced doctor concluded
that Baptist could drive a forklift. This is not the stuff of punitive damages. Indeed, the only
relevant issue here is Ford’s motivation for terminating Baptist, and Baptist admits that the Ford
decision-maker relied on nothing but his attendance records in making the decision to terminate
him. This is not the behavior of someone who is acting in willful and wanton disregard for the
rights of others.
Because courts considering retaliation claims hold that “[p]unitive damages should be
awarded only where the defendant’s misconduct is above and beyond the conduct needed to”
establish the elements of a retaliation claim. Paz v. Commonwealth Edison, 314 Ill. App. 3d 591,
601 (2000),

punitive damages are not appropriate where the Plaintiff “allege[s] nothing more

than the conduct necessary for the basis of an action in retaliatory discharge.” Id. This is such a
case, even though plaintiff’s underlying retaliation claim is also devoid of substantial evidence.
Plaintiff has relied on two cases in support of his request for punitive damages, Blount v.
Stroud, 395 Ill. App. 3d 8, 22 (2009) and Hollowell v. Wilder Corp. of Delaware, 318 Ill. App.
3d 984, 988, 743 N.E.2d 707, 711 (2001). But in both of those cases (which of course are not
binding on this Court), there was significant evidence of willful and wanton conduct over and

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above the alleged violation giving rise to the lawsuit. In Blount, for example, there was evidence
that the defendant “threatened [plaintiff] on more than one occasion and . . . attempted to
intimidate her with his wealth, power, and connections,” and had even “attempted to use his
connections to prevent Blount from testifying that she had witnessed racial and sexual
harassment.” And in Hollowell, after the court held that punitive damages can be appropriate in
some retaliatory-discharge cases, the court noted that punitive damages were appropriate there
because the plaintiff had produced evidence of “harassment and verbal abuse” and that plaintiff
was told that the defendant “did not want plaintiff’s kind of people working for them.”
Hollowell, 318 Ill. App. at 987.
Again, nothing of the sort happened here. Plaintiff points to some emails that show that
Jennifer Nawracaj was highly skeptical that Baptist was injured in the way he described, or that
he was candid with her about his claim, but this is just an experienced and overworked workers’
compensation administrator doing her job. None of this rises to the level of willful or wanton
conduct. The evidence is insufficient as a matter of law to support a punitive damage submission.
II.

PLAINTIFF FAILED TO PRESENT LEGALLY SUFFICIENT EVIDENCE
THAT HE IS ENTITLED TO LOST-WAGES DAMAGES
A.

Mr. Baptist Admitted on the Stand that He Has Been Unable to Perform
Manual Labor, Including Driving a Forklift, Since His Injury and Up to the
Present Day. He Therefore Has No Compensable Lost Wages.

As the Court noted on the record on March 30, 2017, if Mr. Baptist was disabled and
could not perform his forklift job, then he has no lost-wages damages. Mr. Baptist admitted
expressly on the stand at trial that he would not have and could not have returned to his forklift
position. Indeed, Baptist testified that he has been physically unable to do manual labor of any
kind from the time of the injury up to the present day. Thus, he has no lost-wages damages—by

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his own admission, he would not have earned any wages from driving a forklift, so he could not
have “lost” any such wages as a result of Ford terminating him.
Specifically, the only question for lost-wages purposes is whether Baptist would have
returned to his forklift job, and thereby earned wages from Ford from performing his forklift job.
If there is insufficient evidence that Baptist would have returned to his forklift job, then he has
suffered no lost wages. This is because, as the Court has repeatedly noted, this is not an ADEA
case, so Ford had no duty to reassign Baptist to another position other than his forklift position.
The Court stated expressly in its March 27, 2017 order that, under controlling law, “Plaintiff may
not, however, suggest that Defendant had an obligation to transfer or reassign him to a different
position, as that is not the law in Illinois and that cannot be a factor in damages.” (ECF 155 at
2.) Ford was not “obligated to reassign such an employee to another position rather than
terminate the employment.” Hartlein v. Illinois Power Co., 601 N.E.2d 720, 728 (Ill. 1992); see
also id. (“an employer may fire an employee for excess absenteeism, even if the absenteeism is
caused by a compensable injury”).
The Court noted in its March 27, 2017 order that “The jury can consider . . . the
likelihood that Plaintiff would have continued to work as a forklift driver given his injury and
may consider Defendant’s right to fire Plaintiff for a non-pretextual reason.” (ECF 155 at 3.)
“Defendant, of course, is then free to cross examine both Smith and Plaintiff about how much
longer Plaintiff would have actually driven a forklift had he not been terminated.” (Id.) The
Court further noted that, “[f]or example, Plaintiff’s deposition testimony that as of the date of the
deposition, July 15, 2014, he was not looking for “a manual labor job, as I’m a bit older now.”
(Id. n. 3.)

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Baptist admitted directly on the stand at trial that he would not and could not have
returned to his forklift position. Indeed, Baptist testified that he has been physically unable to do
manual labor of any sort, from the time of the injury up to the present day. He explained that he
can’t open and close his car door, and can’t pick up a gallon of paint with his left hand.
These admissions foreclose his claim for lost wages. As the Court has ordered, Baptist
may recover lost wages only for the period of time between his termination and May 9, 2016.
But Baptist has admitted that he was physically unable to perform his forklift job during that
period. He therefore has suffered no lost wages during that period—by his own admissions, he
would not have earned any wages from driving a forklift during this time, so he has not “lost”
them as a result of alleged retaliatory discharge.
B.

Lost Wages are Recoverable in the Workers’ Compensation System, and
Therefore are Not Recoverable Here in a Retaliatory-Discharge Lawsuit

The Illinois Court of Appeals’ decision in Dale v. South Central Illinois Mass Transit
Dist., 17 N.E.3d 229 (Ill. App. 2014) squarely forecloses Plaintiff’s claim for lost-wages
damages. Simply put, lost wages are recoverable in the workers’ compensation system, and thus
Plaintiff’s exclusive remedy for those alleged damages lies there, not here in federal court in a
retaliatory-discharge suit.
In Dale, the Illinois Court of Appeals expressly “h[e]ld that the employee’s damages for
lost wages fall within the exclusivity provisions of the [Worker’s Compensation] Act.” Id. at
233. This is because the “Act provides the ‘exclusive remedy’ for an injured employee seeking
to recover damages from an employer that are causally related to an on-the-job injury”;
“[e]ssentially, these sections of the Act require ‘exclusive resort’ to the worker’s compensation
remedy for injuries arising out of the course of employment.” Id. at 233, 235 (internal quotation
omitted). And “lost wages that are causally connected to a work-related injury are certainly

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recoverable under the Act”—“the statutory scheme of the Act provides injured worker with wage
benefits when they are unable to work due to an injury that is causally related to a workplace
accident, including temporary total disability benefits and total disability benefits.” Id. at 235
(citing 820 ILCS 305/8 (West 2010)) (emphasis added).
In short, because lost wages are recoverable under the Worker’s Compensation Act, an
“employee’s claim for lost wages must be recovered under the Act, not in a civil lawsuit for
retaliatory discharge.” Dale, 17 N.E.3d at 235. “Allowing an employee to maintain a civil
action for lost wages . . . would improperly frustrate the purpose of the Act’s statutory scheme,
which is to provide a system of imposing liability on employers without fault for accidental
work-related injuries and, in return, prohibiting common law suits by employees against the
employer.” Id.
For all these reasons, the Court should grant judgment as a matter of law to Ford on
Plaintiff’s claim for lost-wages damages.
III.

PLAINTIFF FAILED TO PRODUCE LEGALLY SUFFICIENT EVIDENCE OF
EMOTIONAL DISTRESS DAMAGES
The only testimony Baptist provided at trial regarding his emotional distress was that his

feelings were hurt and he felt a loss of dignity and resentment from losing his job and being
unemployed. He testified that his wrist injury has taken him away from his life and career.
But first, whether Baptist has suffered emotional distress arising from his wrist injury is
not relevant. This is not a personal injury claim or a workers’ compensation claim. Only
emotional distress arising from the alleged unlawful retaliation could be relevant.

Baptist

admitted on the stand that it is his wrist injury that has caused his emotional distress, and this is
not recoverable in this retaliation lawsuit.

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Second, general statements about hurt feelings, loss of dignity, and resentment from
losing a job are not sufficient to support emotional distress damages under controlling law. A
plaintiff must show “demonstrable emotional distress,” not just circumstances that could lead to
the inference of distress, and a plaintiff has to do more than testify he was “depressed,” “a little
despondent,” “completely humiliated,” or “highly upset.” See Nekolny v. Painter, 653 F.2d
1164, 1172–73 (7th Cir. 1981) (“The only evidence of injury contained in this record was
Nekolny’s testimony that on learning he was terminated he was ‘very depressed,’ Dahms'
statement that she was at one point subsequent to leaving her job ‘a little despondent and
(lacking) motivation,’ and Dumas’ testimony, on being asked whether he looked for employment
after losing his job, ‘Well, I didn't work for six weeks, I was completely humiliated, and I stayed
close to home.’ That evidence is insufficient to constitute proof of compensable mental or
emotional injury.”); Biggs v. Vill. of Dupo, 892 F.2d 1298, 1304–05 (7th Cir. 1990); Lawyer v.
84 Lumber Co., 991 F. Supp. 973, 976 (N.D. Ill. 1997).
IV.

PLAINTIFF FAILED TO PRESENT LEGALLY SUFFICIENT EVIDENCE
THAT FORD TERMINATED HIM BECAUSE HE FILED A WORKERS’
COMPENSATION CLAIM
A.

Baptist was Required to Present a Legally Sufficient Evidentiary Basis for a
Jury to Find that Retaliation was the Proximate Cause of his Termination

A retaliatory-discharge cause of action is a “narrow” and “limited” one. Beatty v. Olin
Corp., 693 F.3d 750, 753 (7th Cir. 2012). The plaintiff must show that he was terminated
“because of his actual or anticipated exercise of workers’ compensation rights.” Id. (quoting
Zimmerman v. Bucheit of Sparta, Inc., 645 N.E.2d 877, 881, 884 (Ill. 1994); citing Kelsay v.
Motorola, Inc., 384 N.E.2d 353, 357 (Ill. 1978); Hartlein v. Ill. Power Co., 601 N.E.2d 720, 728
(Ill. 1992)). “To prevail on a claim of retaliatory discharge, the plaintiff has the burden of
proving three elements: ‘(1) that he was an employee before the injury; (2) that he exercised a

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right granted by the Workers’ Compensation Act; and (3) that he was discharged and that the
discharge was causally related to his filing a claim under the Workers’ Compensation Act.”
Beatty, 693 F.3d at 753 (7th Cir. 2012) (quoting Clemons v. Mech. Devices Co., 704 N.E.2d 403,
406 (Ill. 1998)).
For the causation element, “the ultimate issue to be decided is the employer’s motive in
discharging the employee.” Clemons, 704 N.E.2d at 406. To establish causation, a plaintiff
must do more than show he filed a workers’ compensation claim and was thereafter discharged:
“Causation requires more than a discharge in connection with filing a claim,” and “‘[b]ut-for’
causation is not sufficient[.]” Phillips v. Cont’l Tire the Americas, 743 F.3d 475, 477 (7th Cir.
2014). Indeed, Illinois law has expressly rejected “but-for” causation, and has expressly rejected
the argument that a defendant can be liable even if it had a legitimate reason for the discharge
because “there can be more than one proximate cause.” Michael v. Precision All. Grp., LLC, 21
N.E.3d 1183, 1190 (Ill. 2014). “It’s not enough for the plaintiff to establish that his workplace
injury and initiation of a workers’ compensation claim set in motion a chain of events that ended
in his discharge.” Hillmann v. City of Chicago, 834 F.3d 787, 794 (7th Cir. 2016). “That is, butfor causation is necessary but not sufficient to prove the causation element of a retaliatorydischarge claim.” Id.; see also Casanova v. Am. Airlines, Inc., 616 F.3d 695, 698 (7th Cir. 2010)
(holding that Illinois decisions had “rejected an argument that but-for causation is enough to
establish retaliatory discharge” and “reject[ed] the argument that a fired worker can establish
causation by showing that a workers’ compensation claim set in motion a chain of events that
ended in discharge”); Gordon, 674 F.3d at 774 (“to establish a causal relationship, Gordon must
affirmatively show that the discharge was primarily in retaliation for [her] exercise of a protected
right”) (internal quotation omitted); Roger v. Yellow Freight Sys., Inc., 21 F.3d 146, 149 (7th Cir.

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1994) (“The plaintiff must affirmatively show that the discharge was primarily in retaliation for
his exercise of a protected right”).
Instead, the plaintiff “must affirmatively show that the discharge was primarily in
retaliation” for filing the claim. Gordon v. FedEx Freight, Inc., 674 F.3d 769, 774 (7th Cir.
2012) (quotation omitted). To meet this burden, the plaintiff “must proffer[] sufficient evidence
from which a reasonable jury could infer that the employer was improperly motivated.” Id.
(citations omitted). Even then, the claim still fails if the employer “provide[s] a legitimate
reason for its decision to terminate [the plaintiff].” Id. “The element of causation is not met if
the employer has a valid basis, which is not pretextual, for discharging the employee.” McCoy v.
Maytag Corp., 495 F.3d 515, 521 (7th Cir. 2007) (quotations omitted).
This is a very limited claim. As the Illinois Supreme Court has explained, “Illinois law
does not obligate an employer to retain an at-will employee who is medically unable to return to
his assigned position; nor is an employer obligated to reassign such an employee to another
position rather than terminate the employment.” Hartlein, 601 N.E.2d at 728. This is true even
if the reason the employee is unable to return to work is a job-related injury: “an employer may
fire an employee for excess absenteeism, even if the absenteeism is caused by a compensable
injury.” Id. “Simply put, Illinois law allows employers to act on the basis of their employee’s
physical disabilities; it is only the request for benefits that state law puts off limits as a ground of
decision.” Id.; see also Cochrum v. Old Ben Coal Co., 678 N.E.2d 1093, 1099 (Ill. App. 5th
Dist. 1997) (“an employer need not retain an at-will employee who is medically unable to return
to his assigned position”).

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B.

Baptist Failed to Present a Legally Sufficient Evidentiary Basis for a Jury to
Find that Retaliation was the Proximate Cause of his Termination

Here, Baptist failed to present a legally sufficient evidentiary basis for a jury to find that
Ford terminated him because of his filing a claim under the Workers’ Compensation Act. Ford
terminated Baptist’s employment because Baptist failed to report to work on and after August
24, 2012, not in retaliation for requesting workers’ compensation benefits in April of that year.
Baptist admitted on the stand that he never returned to his forklift position at any time after June
24, 2012, two months before his discharge. He admitted that he understood that Ford’s plant
doctor, Dr. Lewis, did not view the five-pound lifting-and-gripping limitation as an impediment
to performing his job as a forklift operator. He admitted that he knew Dr. Lewis’s position on
July 9, 2012—six weeks before his termination—and yet he still did not secure any
documentation expressing a medical opinion that he could not drive a forklift, even though he
understood that was what was required.

He admitted that the medical documentation he

submitted to Ford did not express a medical opinion that he could not operate a forklift; that he
had over two months to submit medical documentation to that effect; and that he never submitted
this documentation. This is not causality under any standard.
On top of all of that, Baptist did not dispute any of Ford’s Statement of Material Facts
paragraphs 40-47 relating to the reasons for his discharge, and under Local Rule 56.1(b)(3)(C),
these facts are therefore “deemed admitted.” Among those admissions was that Ford’s laborrelations representative who processed his termination “did not rely on anything other than
Baptist’s attendance records in making the decision to terminate him.” (SA 7, ¶ 46, SA 213.)
Beatty is on point. There, the Seventh Circuit affirmed the grant of summary judgment
on a retaliatory-discharge claim where an employee failed to show up to work. 693 F.3d at 751.
The employee claimed his absence should have been excused because he had suffered a

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workplace injury. Id. The case “present[ed] a straightforward question of causation: Did [the
plaintiff’s] possible pursuit of a workers’ compensation claim prompt [the employer] to fire
him?” Id. The Court held there was no genuine dispute on that question. The employer had a
policy that employees had to call in to report their absences, and it was undisputed that the
plaintiff had failed to do so. “The undisputed evidence thus points in only one direction: [the
employer’s director of labor relations] fired [the plaintiff] based on his noncompliance with [the
employer’s] attendance policy, not in retaliation for his anticipated exercise of his workers’
compensation rights.” Id. at 755-76; see also Williams v. Office of Chief Judge of Cook Cty.
Illinois, 839 F.3d 617, 622-23 (7th Cir. 2016) (“We see a critical difference between Grabs and
this case. In Grabs, a decision-maker acted improperly on the knowledge of the disputed IME by
recoding the plaintiff's work status in the attendance system. That improper act caused the
plaintiff's termination. There is no evidence here that Golden acted with knowledge that
Williams disputed her return to work date. In fact, Golden testified she had no idea Williams
believed her return to work date was September 6. From Golden's vantage point, Williams
simply decided not to return to work.”).
The undisputed evidence points the same direction here:

Ford’s labor-relations

representative terminated Baptist for his noncompliance with Ford’s labor union attendance
policy, not in retaliation for exercise of his workers’ compensation rights.
For all of these reasons, Ford respectfully requests that the Court grant judgment as a
matter of law to Ford under Rule 50(a).

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Dated: March 31, 2017
Respectfully submitted,
BERKOWITZ OLIVER LLP
By: Timothy S. Millman
Timothy S. Millman N.D. Ill #44398
Nicholas L DiVita N.D. Ill. #37514
2600 Grand Boulevard, Suite 1200
Kansas City, Missouri 64108
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
[e-mail]
-andKaren Kies DeGrand, ARDC #6191140
Donohue Brown Mathewson & Smyth LLC
140 South Dearborn Street, Suite 800
Chicago, Illinois 60603
Telephone: [phone]
Facsimile: [phone]
Email:
[e-mail]
Attorneys for Defendant Ford Motor Co.

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CERTIFICATE OF SERVICE
I hereby certify that on this 31st day of March 2017, I electronically filed the foregoing
with the clerk of the Court by using the CM/ECF system, which provided electronic service
upon:
Kent D. Sinson
Sinson Law Group
205 W. Wacker Drive
Suite 1600
Chicago, Illinois 60606
[e-mail]
Joanna C. Fryer
5555 N. Sheridan
#241
Chicago, Illinois 60640
773-386-6958
[e-mail]
Attorneys for Plaintiff
/s/ Timothy S. Millman
Attorney for Defendant

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